Section 65 of the Magistrate Court Act 32 of 1944 (Mag Court Act) regulates the enforcement of debts that arise from civil proceedings by creating a framework by which a victorious party (Judgement Creditor) can request for an order requiring the defeated party (Judgement debtor) to offer a structured payment plan to extinguish a judgement debt.
Following a judgement, for the payment of money, and before a section 65A (1) notice a judgement debtor can make an offer to the judgement creditor to pay the judgment debt. The judgement debtor may offer to pay the judgement debt in specified instalments. The clerk orders the judgment debtor to pay the debt as per offer if the creditor accepts the offer and sends a written request to the clerk. The clerk’s order is deemed to be an order of the court mentioned in section 65A (1).
In order to obtain a section 65(A) order to enforce an unsatisfied payment of money judgment, a judgement creditor is required to compel the judgement debtor to appear before the court in chambers by issuing a notice. A notice is issued from the district court where the judgment debtor is employed, resides, or does business. If the judgement debtor is a juristic person, a representative or a director may appear.
During an appearance, the court will enquire into the judgement debtor’s financial position and make a fair and equitable order for the judgement debtor to pay the judgement debt in instalments. If the creditor accepts the offer, they must send a written request to the clerk of court requesting the clerk to make an order compelling the judgment debtor to pay the debt as per the offer. An order by the clerk is deemed to be an order of the court mentioned in section 65A (1).
If the judgement debtor fails to pay the instalments as agreed, the judgement creditor can apply for an emolument order under section 65J. Emolument Attachment orders (EAO) ensure that the judgement debtor pays the amount owed to the judgement creditor. “Emoluments” is profit, or gain received as a result of one’s employment or one’s holding of office. The order compels the particular judgement debtor to pay the judgement creditor amounts specified in the EAO.
Author: Millicent Sifiso Mthunzi
Candidate Attorney at Malcolm Lyons and Brivik Attorneys Inc.
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